A Planning Inspector’s October 2022 decisions both to grant permission on appeal to convert an existing garage into a granny annex and to make an award granting full costs against West Berkshire Council for unreasonable behaviour is a reminder of the perils of local authorities jumping to poorly reasoned conclusions[1].
Background
In May 2014, West Berkshire Council granted planning permission reference 14/00726/HOUSE authorising the erection of a detached 1.5 storey, double garage building about 28m from the main dwelling. Condition 4 of the permission restricted the use of the garage to “purposes ancillary to the use of the existing dwelling” and expressly prohibited its use for “additional bedroom accommodation or for any form of human habitation”.
In September 2021, the owners applied for planning permission for a partial residential conversion of the garage to provide “annexed accommodation” for the mother of the applicant who wished to live closer to her family so that they could provide “necessary care and assistance on a daily basis” albeit with a degree of independence.
The proposal partitioned the double garage, retaining one car parking space and creating a separate kitchenette from the other. Upstairs under the sloping roof, an existing shower room would be enlarged to accommodate a toilet, and the remaining space would function as an open-plan, bed-sitting room. No substantive external alterations were proposed.
The supporting planning statement stressed that the application was to create an annex, not a separate planning unit. In support of this argument, the statement explained that vehicle access, parking areas, pedestrian routes and garden areas would all be shared. In addition, the annex would have the same postal address as the main house, and the applicant’s mother would use the main house for eating meals, washing clothes and socialising with the family. The planning statement also drew the Council’s attention to relevant Court and planning appeal decisions, and in particular, to the case of Uttlesford District Council v Secretary of State for the Environment [1991] 2 PLR 76 (see below).
The Delegated Officer Report highlighted both the 28m distance from the main house, and the fact that an annex capable of independent occupation had “the potential to be subsequently let or sold off, thus creating a separate planning unit and an isolated dwelling within the countryside”. It concluded that the “proposals [were] tantamount to a …. self-contained and independent unit and a separate planning unit”. Local policy was against new dwellings in the countryside, and as a result the application was refused.
Uttlesford District Council v Secretary of State for the Environment [1991] 2 PLR 76
It is worth at this stage briefly revisiting the remarkably similar facts in the Uttlesford case.
In Uttlesford, a separate garage at the rear of a residential garden was authorised by a permission and subject to a condition prohibiting its use as a residential annex or separate dwelling. The garage was converted, retaining on the ground floor some garage space, but also providing a separate kitchen area with a bed-sitting room and bathroom on the first floor. The purpose was to provide semi-independent living space for the owner’s mother but with shared use of the facilities of the main house. The owner’s application for planning consent for what it described as ‘a granny annex’ was refused by the Council but allowed on appeal.
The appeal decision was judicially reviewed by Uttlesford District Council, arguing (amongst other arguments) that by definition, a separate, self-contained residential unit that was capable of independent occupation (irrespective of how it was intended to be used) materially changed the use of the property from use for a single dwelling to use for two independent dwellings.
The Court rejected that argument, confirming that whether or not a proposed annex creates a separate dwelling was a question of fact and degree to be decided on the facts of the case. In Uttlesford the Inspector had decided (and was entitled to so decide) on the facts that the annex remained subordinate to the main house, and hence part of the same planning unit. The Court also took no issue with the Planning Inspector’s comment that any future desire to occupy the annex as a wholly independent residence would require planning permission.
Mudhall Cottage, Winterbourne Road, Appeal Ref: APP/W0340/W/22/3291473
Returning then to the Mudhall planning appeal. On appeal, the Planning Inspector identified the main issue as “whether the proposal would provide accommodation that is tantamount to the creation of a separate self-contained and independent dwelling”. His decision letter expressly states that he is ‘mindful’ of the Court’s decision in Uttlesford that even if the accommodation provided facilities for independent day to day living, it remains a matter of fact and degree whether the proposed development would create a planning unit separate from the main house.
The Inspector’s decision letter notes that there were “elements of the proposal that would provide the facilities for independent day to day living, [but equally] there are a number of other factors that persuade me that it should be regarded as an annexe that is functionally linked and incidental to the main dwelling”. Those factors included that the proposal was within the existing garage and therefore subservient in scale, functional links with the main house would remain, and that the occupants of the proposal and the main dwelling would interact (including at mealtimes) in the main house and garden.
In granting permission, the Inspector refused to impose an occupancy condition, commenting that “if an outbuilding is proposed for incidental use, or for use as part of the main dwelling, a condition to restrict the use will rarely be needed. Even if the development could be used as a separate dwelling, such a use could not become established without further planning controls”.
Given the factual similarity with the Uttlesford case, the Inspector’s decision is perhaps not surprising. However, what is notable is the award of full costs against the council, and the inspector’s trenchant criticism of the “limited scope” of the Council’s assessment and its undue focus on the potential for independent living. In particular, the Inspector noted that the Council made “no reference to case law” in the delegated report, and that “no counter logic was presented in response to each of the detailed justifications given by the applicant”.
In respect of the case law, the Inspector commented that “case law sets out that decisions must be made on what is actually proposed and not what could happen in the future … This is logical, because whether something could happen is a matter for future planning control. If the building is not used as proposed, or if there is a material change of use in the future to create a separate dwelling, then a separate grant of planning permission would be required, and the building would be at risk of enforcement action if such permission had not been granted” (emphasis added).
The Mudhall case does not change the established legal position that it is a question of fact and degree whether or not a proposed annex is in reality ancillary to a main house (it is perfectly possible that some proposed annexes will not be and that issue will be considered in a future article). However, it is a salutary lesson in the dangers of excessive focus on just one aspect of the proposal (i.e. the ability for independent living), without giving equal consideration to the other aspects (i.e. the applicant’s arguments as to why the use of the annex would remain ancillary to the main house). Presumably, that is a mistake that West Berkshire District Council will in future avoid.
Our planning team are experienced in advising on this area of planning law and preparing planning applications and certificates of lawful established/use. Should you have a similar issue, please get in touch with our planning team.
Please note that this is the first of two articles on residential annexes and planning control. The second is due to follow later this month.
[1] APP/W0340/W/22/3291473, Mudhall Cottage, Winterbourne Road, Boxford, Newbury RG20 8AY
